Scherr v. Volpe, 71-C-347.

• Decision Date: 29 December 1971
• Docket Number: No. 71-C-347.,71-C-347.
• Citation: 336 F. Supp. 886
• Parties: Abraham SCHERR et al., Plaintiffs, in their own behalf and on behalf of all persons similarly situated, v. John VOLPE, individually and as Secretary of Transportation of the United States, Washington, D. C., et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

336 F. Supp. 886

Abraham SCHERR et al., Plaintiffs, in their own behalf and on behalf of all persons similarly situated, v. John VOLPE, individually and as Secretary of Transportation of the United States, Washington, D. C., et al., Defendants.

No. 71-C-347.

United States District Court, W. D. Wisconsin.

December 29, 1971.

Frederick H. Miller, Madison, Wis., for plaintiffs.

Richard E. Barrett, E. Gordon Young, Asst. Attys. Gen., John O. Olson, U. S. Atty., James R. Mack, Asst. U. S. Atty., Madison, Wis., for defendants.

OPINION AND ORDER ON MOTION FOR ORDER SUSPENDING THE PRELIMINARY INJUNCTION

JAMES E. DOYLE, District Judge.

Defendants Clapp, Redmond, and Banaszak have moved for an order suspending the preliminary injunction¹ entered herein December 7, 1971, and the motion has been briefed and heard. The record has been supplemented since December 7, 1971, with various exhibits and affidavits. For the purpose of deciding the motion to suspend the preliminary injunction, and only for that purpose, I reaffirm the findings of fact contained in the December 7, 1971, order, and additionally I find as fact the propositions stated in the section of this opinion which follows immediately.

FACTS

On or about January 21, 1971, the Division of Highways of the Department of Transportation of the State of Wisconsin (hereinafter "State") concluded that an environmental statement of the kind described in 42 U.S.C. § 4332(2) (C) was not required with respect to the 12 mile project here in dispute, and the Wisconsin Division of the Federal Highway Administration (hereinafter FHWA) joined in this conclusion. The record is silent as to the basis for this conclusion, and it appears that no explanation was recorded as to why the project was not considered a "major Federal action significantly affecting the quality of the human environment . . .." Thereafter FHWA authorized the State to proceed to advertise for bids and to enter into certain contracts for construction; the State proceeded to enter into contracts covering a 4.1 mile segment of the total project; construction on this segment had begun and was in progress at the time the December 7, 1971, injunction was entered.

Among the effects of the injunction have been the following: This 4.1 segment of the highway has been left unimproved and there continues in existence certain hazards to the physical well-being of users of the highway arising from its traffic load. A substantial number of employees of several contractors have been deprived of a substantial amount of wages which they would otherwise have received for work to be performed on this project. Two or more of the contractors have suffered substantial financial loss. I take judicial notice, from various petitions and letters submitted to the court, that a substantial number of the residents of the affected area desire that the highway project proceed without further delay.

OPINION

Although a number of contentions have been advanced by the movants for suspension of the preliminary injunction, two appear to be major.

The first is that under 42 U.S.C. § 4332(2) (C), the federal administrative agency (here, the FHWA) enjoys discretion to determine whether a particular project is "major" and whether it is a project "significantly affecting the quality of the human environment"; that FHWA has exercised this discretion by determining that this particular project does not meet these tests; that this administrative determination is not to be overturned by a court unless it is arbitrary and unreasonable; and that this particular administrative determination was neither arbitrary nor unreasonable.

I cannot accept this contention.

Of course, it is familiar law that Congress may delegate certain functions to administrative agencies, that the agencies may then exercise the discretionary powers granted to them, and that a specific administrative exercise of such discretionary powers is to be respected by the courts unless it is arbitrary or unreasonable. But § 4332(2) (C) is a flat command to FHWA, to the fullest extent possible, to make a detailed statement on five specific environmental factors in connection with all "major federal actions significantly affecting the quality of the human environment . . .." Obviously, FHWA and other federal agencies are called upon to decide what § 4332(2) (C) requires of them in certain situations. FHWA may form an opinion that a particular project is not major, or that it does not significantly affect the quality of the human environment, and that, therefore, FHWA is not required to make the detailed environmental statement. However, when its failure is then challenged, it is the court which must construe the statutory standards ("major" and ...